My felony case was indicted then dismissed, can I get an expunction?

Our firm handles expunctions for all kinds of cases, and we spend a lot of time clearing up misconceptions about what the law is on expunctions in Texas. The number 1 misconception is that deferred adjudication probation cases can be expunged. So many lawyers were misinforming their clients about deferred expunctions, that deferred probation cases in Kaufman County now have a separate plea form that informs all Defendants that DEFERRED PROBATION CASES CAN NOT BE EXPUNGED, ONLY NON-DISCLOSED (some call this “sealed”). Quick lesson, expunction destroys all records pertaining to an arrest, non disclosure keeps those records from the public (but the Government can still view them and they still exist).

But that’s not what we are going to discuss today. Today’s misconception is that all dismissed felony cases can be expunged. Not so fast. The law in Texas places restrictions on the expunction of dismissed cases and a recent Dallas Court of Appeals case breaks down the law so let’s use that as our example.

Today’s case of the day is Bothwell vs. State, an appeal out of the 86th District Court in Kaufman County.

What happened?

In 2008, Bothwell was indicted for indecency with a child by sexual contact. The complaining witness (CW) was Bothwell’s daughter. The CW alleged that Bothwell kissed her and touched her breasts and vagina. The CW wrote out a statement detailing the abuse, but later recanted saying she made it all up to please her mother. The CW recanted and re-alleged the events multiple times. Eventually the prosecutor dismissed the indictment out of concern for the CW’s mental health. Bothwell wanted the records expunged, because being accused of sexual indecency with a child will ruin your life, and he wanted a way to put this event behind him. So Bothwell filed a petition for the expunction in the 86th District Court of Kaufman County, the judge denied the petition. Bothwell appealed.

What’s the law on expunction for dismissed felony cases in Texas?

Great question. From the opinion-

Section 55.01 of the code of criminal procedure provides in pertinent part that a person arrested for commission of a felony is entitled to have the records and files of the arrest expunged if the indictment or information has been dismissed or quashed, and the court finds that the indictment was dismissed or quashed . . . because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense, or because the indictment or information was void.

Ok. So it’s not enough to have your felon case dismissed once it’s been indicted, you have to prove some other elements as well, such as mistake, false information, or lack or probable cause. This is why it’s very important to see what the prosecutor puts in their dismissal motion. In Kaufman County we have standard dismissal motions that include a list of reason for the dismissal (including a blank “Other” section). There are reasons on the form such as “in the interest of justice”, “Defendant was convicted in another case”, or “insufficient evidence”. It’s important to note that some of the reasons will not entitle you to an expunction. So even if you get the case dismissed, you still have to prove that there was no probable cause, or false information, in order to get an expunction.

In this case the prosecutor testified that she believed the allegations, even thought the witness confessed to lying, and the judge believed the prosecutor (that is, found the prosecutor to be credible) and didn’t believe the CW (Bothwell’s daughter). So th Dallas Court of Appeals ruled against Bothwell as well.

So remember, just getting a felony case dismissed does not entitle you to an expunction. You may have to prove to a judge that you qualify and have a contested hearing regarding the expunction.

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